40 La. Ann. 234 | La. | 1888
The opinion of the Court was delivered by
M. S. Powell was elected as sheriff and ex officio tax collector in 1884, and was commissioned and qualified as such on June 16,1884, for the full term of four years. In June, 1885, he absconded, and was declared a defaulter to the State and parish for a large amount of taxes not accounted for.
The present action is brought against him and the sureties on his ■official bond. A separate judgment was rendered against his succession, he having died after suit was instituted, for the amount claimed, without prejudice to the rights and defenses of the sureties, as to whom the case was subsequently tried, resulting in a judgment iu their favor.
The sureties, admitting their signatures to the bond, filed a general •denial as to all other matters and also certain special defenses.
We will first consider the special defenses,"which go to the root of the action, viz :
1. They show that Powell had held the same office during several ■previous years, having been elected as his own successor; that he had been a defaulter to the State in each of said years ; that the law of the State required the Auditor of Public Accounts to publish annually the names of all defaulters; that the Auditor failed to make such publication ; that by reason thereof the fact of his previous defalcations was concealed from them, and that they signed the bond through error in ignorance of this fact, which, if they had known, would have prevented “them from signing the same.
These defenses are utterly unavailing. It has been so often held that sureties on the bond of an officer cannot avail themselves of laches or omissions of other officers in the performance of duties imposed by law as a ground of discharge of their own liability, and that the ineligibility or disqualification of their principal is no defense,, that amere quotation of the precedents is an all-sufficient disposition of those defenses. Board vs. Judice, 39 Ann. 896; St. Helena vs. Burton, 35 Ann. 521; Board vs. Brown, 33 Ann. 683; State vs. Blohm, 26 Ann. 538; Mayor vs. Merritt, 27 Ann. 568; State vs. Breed, 10 Ann. 491; State vs. Dunn, 11 Ann. 549; State vs. Hayes, 7 Ann. 118; Duncan vs. State, id. 377; Mayor vs. Blache, 6 La. 500.
The case last cited learnedly and scientifically disposes of the defense of error, based on concealment or failure to give notice of prior defalcations.
The State’s claim is based upon, and sustained by, certified extracts-■from the books of the auditor of public accounts. The admissibility and sufficiency of such evidence are disputed by defendants; but it is well settled that they are official records, kept under requirements of law, and as such are admissible and furnish full prima facie proof. State vs. Masters, 26 Ann. 268; State vs. McDonnell, 12 Ann. 741.
It is even expressly provided by law that such certified statements shall be held sufficient evidence for the finding of an indictment against a delinquent tax collector and “shall be read in evidence against the accused on the -trial of the case.” Act No. 107 of 1884, sec. 11.
As to the nature and effect of these statements, the Court has said “ The process of computing debits and credits on a tax collector’s account is very simple. He is charged with the sum total of the rolls, and of the licenses, and it is for him to offset these by legal vouchers for legal payments and by a delinquent list in due form. The tax collector is presumed to have collected all that is on his roll and his number of licenses, and if he does not settle by a given day, he is a defaulter ipso fado. Everything is presumed against him. He is-. prima facie liable for the whole amount of the assessment roll, and the onus of proof is upon him to show discharge, payment,” etc. Police Jury vs. Brookshier, 31 Ann. 736; State vs. Guilbeau, 37 Ann.
The defendants have, failed to furnish any legal vouchers whatever to show any offsets.
They set up that in February, 3885, Powell made largo payments to the State treasurer, which they claim were made out of moneys collected from the taxes and licenses of 1884, and they produce the treasurer’s receipts. These receipts show a certain amount paid on account of taxes and licenses of 1884, which credits are duly entered and allowed in the auditor’s certified accounts herein sued on. The balance of the payments are expressly imputed by the receipts themselves to taxes and dues of previous years. How can defendants contradict the receipts offered in evidence by themselves, and of what avail would such contradiction be? The payments so imputed operated a discharge of the dues to which they are imputed, and how can they have the double effect of discharging others to an equal amount?
This Court has expressly held that sureties are not released because tbe collections covered by their bond have been paid by the sheriff into the treasury on his account for a preceding year.
l< The disposition of it alleged by the defendants,” says the Court,' “ was as much a misappropriation as if he had used it in the payment of his private debts.” State vs. Hayes, 7 Ann. 121.
The defendants further allege that the blank licenses, with which Powell was charged to the amount of $5592.50, were never used by him, but, were turned over by his deputy to his successor in office — I C. Bass — for which sum they claim credit. The only word of evidence in the record with regard to this important allegation is this statement by Bass as a witness : “ T. J. Powell was in charge as deputy when 1 took possession. He turned over to me in blank State licenses for the year 1885, $5592.”
There is nothing to show that this turning over was ever reported to the auditor ; that Bass was ever charged with them ; what he did with them, whether ho disposed of or accounted for them. If they had been returned to the auditor, or charged to Bass, or otherwise accounted for to the State in any manner, the auditor’s books would show it, and that was the source to which defendants should have looked for proof that this valid charge against their principal had been legally accounted for. Not only have they failed to bring such proof, but they have not even produced the blank licenses, which, for aught, that appears, may have been used and never accounted for to the
The same reasons apply to reject their claims to credits on account of taxes collected and property adjudicated to the State for taxes of 1884, by the successor, Hass. There is no proof that the State received any account of these, collections from any source, and it is to the State that the account is due.
If it be true that the State recovers by our judgment more than she is entitled to, she is the fountain of justice and defendants may find relief by application to the other departments of her government j but we must hold that they have failed to establish these offsets by any competent evidence.
We find in the record an admission that defendants are entitled to credits on the amount claimed in the sums $78 and $65, and shall allow them.
II,
One of the sureties, Mrs. Steinhardt, iutevposes a .denial of her liability on the bond, because her name as surety thereon was signed by an agent without legal authority. The power of attorney, under which the agent acted, is the broadest and most complete that could be imagined. It seems to have been framed to confer upon the agent not only every possible general power, but to confer expressly and specially every power for the exercise of which the Code requires that the authority shall be express and special. One has only to road it with the articles of the Code before him to discover that it was drawn with direct reference thereto and with the plain intention of conferring upon the agent every possible power, in manner and form, as the Code provides.
We make the following extract from the powers granted: “ To draw, endorse or accept bills of exchange, promissory notes or bank checks; to bind the said appearer upon or to any bond, obligation, contract or agreement whatsoever, either as principal or as surety thereto or thereon, and to sign the same for her and in her name-, either as such principal or surely, as the case may be.”
An express and special power to bind the constituent as surety on “my hond whatsoever,11 is an express and special authority to bind her on this particular bond. The contention that the term special, as used in the Code, requires a special ‘authority for each particular act is unreasonable and unsupported by any authority, and would defeat the purposes of mandates, since, if the constituent were required to grant a new authority for each particular act, he might, with less inconvenience, perform the act himself.
If her agent has abused the trust confided in him, she, being mi juris, deliberately invested him with the power, and it is just that she should bear the loss rather than the State, which accepted his action under her express and special mandate.
In framing the decree we shall follow the precedent in Teutonia Bank vs. Wagner, 33 Ann. 732.
It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed that the State of Louisiana have and recover judgment against the defendants severally, to wit: Fred G. Bernard, Wm. D. Bell, Nathaniel Houghton, Jason Hamilton, Frank D. Rago,. Victor M. Purdy, Oliver M. Cherry, Zachariah Goldenburg, Alfred Lewis, John W. Montgomery, and Mrs. Henrietta Steinhardt, in the sum of $15,818.92, with five per cent per month interest thereon from-September 25, 1885, less any amount that may have been collected under the judgment against the succession of M. S. Powell; the said judgment to be operative against said defendants Bernard, Bell andHoughton up to the sum of $1000 each and no more ; against Hamilton and Rago up to the sum of $500 each and no more ; against Purdy,. Cherry, Goldenburg and Lewis up to the sum of $2000 each and no more; against the said Montgomery up to the sum of $3000 and no-
